County Court advocate is a ‘worker’, says employment tribunal
Ruling could give rights to hundreds of law grads working as unqualified advocates
A law graduate acting as a County County advocate was a “worker” for the purposes of employment law, a judge has found.
LPC Law, which arranges for lawyer hopefuls to argue minor cases under its supervision, had argued that its advocates were independent contractors.
But a judge sitting at East London Hearing Centre ruled against the firm, potentially expanding employment rights to hundreds of advocates if the judgment is followed in future cases.
LPC Law says it will appeal.
The tribunal heard that the firm, founded in 1994, works with some 260 advocates. Most have passed the Legal Practice Course or Bar Professional Training Course, but haven’t landed a training contract or pupillage, and want some experience to help them do so.
Despite being unqualified, they are allowed to argue at hearings (typically in the County Court) provided they are under the instruction and supervision of an “authorised person”.
One of these advocates was the claimant, a Ms Agada, who had a first class law degree from the University of Hertfordshire and a “very competent” in her BPTC.
She attended court hearings for LPC Law clients between March and December 2018, but wasn’t used after that. In August 2019, she sued for various breaches of employment law, alleging discrimination because of pregnancy and maternity leave among other things.
To get the claim off the ground, the tribunal first had to decide whether she was a “worker” for the purposes of employment law. LPC Law contended that she wasn’t, and was instead running a freelance advocacy business of which LPC was merely a client or customer.
The firm pointed to a previous decision of a different employment judge dealing with the exact same set-up. In 2014, employment judge Wade had decided that another advocate working for LPC Law was “neither an employee nor a worker”.
But employment judge Crosfill went his own way, saying that the case law had moved on since then.
He relied in particular on the Supreme Court’s recent decision in the Uber case , where it held that drivers using the ubiquitous app were workers.
As with Uber, the fact that LPC Law’s contract with Agada said she wasn’t a worker didn’t matter: “I need to look at the reality of the situation as I have found it”.
Similarly, that Agada was free to work for other firms operating the same business model didn’t necessarily mean she was a proper freelancer. “In Uber BV v Aslam and others it was recognised that the drivers were free to use any of the rival taxi Apps. This was not fatal to their claim to worker status”.
Crosfill also found that Agada was paid standardised fees and had no scope to “build a business on the back of any personal relationship”. In general, given the oversight and training involved, “the level of supervision was such that the Respondent had a high degree of control over the Claimant”.
Looking at the relationship in the round, the judge ultimately held that LPC Law wasn’t a “customer or client of the Claimant. Accordingly, I find that the Claimant was a worker”.
LPC Law told Legal Cheek:
“This decision is a finding at a preliminary hearing and part of ongoing legal proceedings which, following legal advice from Counsel, LPC Law intends to appeal.
Employment Judge Crosfill strongly approved of the way LPC Law operates its business, which for over 25 years has given many Legal Practice Course and Bar Course graduates invaluable experience that many later credit as key to them obtaining pupillage, a training contract or even a seat on the bench.
LPC Law considers that the barristers, solicitors and advocates it instructs are independent contractors and treats them accordingly. They are free to work for others, including competitors, and many do so whilst taking instructions from LPC Law. This is industry standard.”
An appeal could trigger a judgment from the Employment Appeal Tribunal, which would be much more authoritative than this ruling.
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